Police v Poka [2018] PGDC 27; DC3059 (18 May 2018)

DC3059
PAPUA NEW GUINEA

IN THE DISTRICT COURT SITTING

IN ITS CRIMINAL (COMMITAL) JURISDICTION

COMM 140, 145, 146 & 147/2018

BETWEEN

Police
-Informant-
AND

HARRY POKA

Kundiawa: B. Tanewan

2018: 18^th May

CRIMINALCODE ACT– Section 383A (1) -Misappropriation– Section 407(1)(b)- Conspire – Section 92(1)- Abuse of Office- Section 87 (1)(a)(i)9b)– Official Corruption
DISTRICT COURT ACT- Section 95 - Committal process – whether prima facie case to commit Defendants.
CRIMINAL LAWPRACTISE & PROCEDURE - Committal court to form a bona fide opinion whether there is sufficient evidence to commit the defendants to National Court- Prima Facie Case Established- Defendants committed to the National Court.
PRACTISE & PROCEDURE – Application to exclude evidence obtained in breach of Search Act – section 6 of Search Act – Section 47 of Constitution- whether Committal Court has jurisdiction- Committal Court has no jurisdiction -Constitutional rights to be enforced at trial.

LEGISLATION

Criminal Code Act 1974
District Court Act 1963
Search Act, 1977

CASES CITED

Regina vMcEachern [1967-68] PNGLR 48
Review pursuant to Constitution, Section 155(2) (b) Application by Herman Joseph LeahySCR No 34 of 2005

Lak v Magaru [1999] PNGLR 572
Liri v State (2006) N3110(17/11/06)
Bukoya v State (2007) SC887(17/10/07

Alex v Golu [1983] PNGLR 117

REFERENCES

Hill E. R. & Powles.G; Magistrates Manual of Papua New Guinea, Lawbook, Co. (2001), Sydney, NSW 2009
Counsel:
Sergeant Michael Awagl - for Prosecution
Oliver Amemai - For defendant

COMMITTAL RULING

TANEWAN, PM: The Defendant Harry Poka, stands charged one (1) count of Misappropriation under section 383A (1) (a) of the Criminal Code Act, one (1) count of Conspire under section 407(1)(b) of the Criminal Code Act, one (1) count of Abuse of Office under section 92(1) of the Criminal Code Act and one (1) count of Official Corruption under section 87(1)(a)(i)(b) of the Criminal Code Act.

BRIEF FACTS
The facts are that on 24^th March 2017at Kundiawa, the defendant being the Acting Chief Executive Officer of Sir Joseph Nombri Kundiawa General Hospital did authorized K175,000.00 for consultancy service fees made payable to one Peter Gamai for alleged consultancy services provided to the hospital. The police further alleged that that payment was made without following proper processes and procedures set out under the Public Finance Management Act. It is also alleged that in doing so Harry Poka abused the authority of his office as the CEO,did conspired with other board members to authorized the payments and being a public servant his actions were corrupt in nature.

The charges are set out below;

383A. MISAPPROPRIATION OF PROPERTY.

[122](1) A person who dishonestly applies to his own use or to the use of another person–

(a) property belonging to another; or

(b) property belonging to him which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction or condition or on account of any other person,

is guilty of the crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for a term not exceeding five years except in any of the following cases when he is liable to imprisonment for a term not exceeding 10 years:–

(a) where the offender is a director of a company and the property dishonestly applied is company property;

(b) where the offender is an employee and the property dishonestly applied is the property of his employer;

(c) where the property dishonestly applied was subject to a trust, direction or condition;

(d) where the property dishonestly applied is of a value of K2,000.00 or upwards.

(3) For the purposes of this section–

(a) property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property; and

(b) a person’s application of property may be dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property; and

(c) a person’s application of property shall be taken not to be dishonest, except where the property came into his possession or control as trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps; and

(d) persons to whom property belongs include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who, immediately before the offender’s application of the property, had control of it.

407. CONSPIRACY TO DEFRAUD.

(1) A person who conspires with another person–

(a) by deceit or any fraudulent means to affect the market price of anything publicly sold; or

(b) to defraud the public, or any person (whether or not a particular person); or

(c) to extort property from any person,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

92. ABUSE OF OFFICE.

(1) A person employed in the Public Service who, in abuse of the authority of his office does, or directs to be done, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanour.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding two years.

(2) If an act prohibited by Subsection (1) is done, or directed to be done, as the case may be, for purposes of gain, the offender is liable to imprisonment for a term not exceeding three years.

87. OFFICIAL CORRUPTION.

(1) A person who–

(a) being–

(i) employed in the Public Service, or the holder of any public office; and

(ii) charged with the performance of any duty by virtue of that employment or office, (not being a duty touching the administration of justice),

corruptly asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done by him in the discharge of the duties of his office; or

(b) corruptly gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on or for any person, any property or benefit on account of any such act or omission on the part of a person in the Public Service or holding a public office,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years, and a fine at the discretion of the court.

(2) A person shall not be arrested without warrant for an offence against Subsection (1).

THE RELEVANT ISSUES

1. Whether the District Court has jurisdiction to exclude evidence in the Committal file obtained without a search warrant under the Search Act at the Committal hearing.
   
2. Whether there is a prima facie case against the Defendants on the charges to warrant a committal to the National Court.
   

THE LAW

Having the above issues in mind, the Committal process is provided for under Section 95 of the District Court Act which basically requires the Committal Magistrate to consider the evidence contained in the Police Hand – Up Brief and form an opinion whether there is prima facie evidence on the charge to warrant a committal.

Firstly I will set out the process and procedures in the Committal process as well as the functions of the Committal Magistrate.

Section 95 of the District Courts Act stipulates;

“COURT TO CONSIDER WHETHER PRIMA FACIE CASE.

(1)Where all the evidence offered on the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.

(2) If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.

(3) If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division.”
There are numerous judgments both from the higher courts as well as the lower courts on the jurisdiction and function of the committal court.

The standard of proof in committal proceedings is stated in Regina vMcEachern[1967-68] PNGLR 48, where it held:-

"To decide that the evidence offered by the prosecution in committal proceedings is sufficient to put the defendant on trial....The Court has only to form a bona fide opinion that there is a sufficient prima facie case against the defendant."

This measure of sufficiency is less than the trial standard of proof beyond reasonable doubt.
In the Supreme Court in the case of aReview Pursuant to Constitution Section 155(2) (b)Application by Herman Joseph Leahy (2006) SC855 unreported Judgment the bench adopted the view by his honour Mogish J held in the National Court as I quote;

That the role of a committal magistrate is not to decide whether to dismiss or acquit an accused person charged with an indictable offence or to determine the guilt or innocence of the accused. The magistrate's function under Part VI (proceedings in case of indictable offences) of the District Courts Act is to consider whether the evidence adduced is sufficient to put the accused on trial in the National Court. His Honour cited with approval the following dicta of the Full Court of the Supreme Court of New South Wales in Ex parte Cousens: Re Blackett [1946] NSWStRp 36; (1964) 47 SR (NSW) 145:

In substance a committing magistrate determines nothing except that in his opinion a prima facie case has been made out for committing the accused for trial. ...

In relation to charges of offences which they have no jurisdiction to try or dispose of, their authority is not judicial; they do not determine whether the accused is guilty or not guilty; they consider the evidence against him and if they think that there is enough to justify putting him upon his trial, they direct that he be held, or bailed, for trial by a court which has jurisdiction to try him. This is essentially an executive and not a judicial function.

InLak v. Magaru [1999] PNGLR 572 where his honour Sheehan J (as he was then) alluded;

“Notwithstanding that,committalproceedings do make determination affecting a person’s rights thus enabling courts to consider applications for review; the fact is that a committal nonetheless makes no determination of liability or penalty. It is a preliminary process in the system of criminal justice where the prosecutor makes public disclosure to a Committal Court of evidence relied on to support an application for committal for trial of a charge. The National Court is where that evidence is to be tried, where it is to be tested. Thus upon committalthe National Court is seized of a matter in its criminal jurisdiction. And there in the National Court, an accused has all the rights protections and appeal procedures that the criminal justice system provides.”

In Liri v State [2006] N3310 Lay. J held that "nothing is finally decided by the committal proceedings. The applicant's Constitutional rights will be protected on trial from any deficiency in the evidence."

In another case ofBukoya v State [2007] SC887 the Supreme Court stated that;

“As the strength of the evidence, the statements from the committal, such as they are, establish a prima facie case. The state witnesses may or may not come up to proof, the evidence may also establish a defence but that can only be determined by a full trial.”

Furthermore theHill E. R. &Powles.G; Magistrates Manual of Papua New Guinea, Lawbook, Co. (2001), Sydney, NSW 2009provides;

“The committal court is not required to weigh the evidence for its credibility, as it does not have the jurisdiction to determine the guilt of the defendant in the circumstances and it can only form its mind as to whether a prima facie case from the evidence gathered does exist – section 95 and Magistrate's Manual of PNG.”

Having considered the processes and procedures involved in the Committal Court, I now address the application by the defendant to exclude evidence obtained in breach of the Search Act.
The relevant provision in the Search Act is Section 6 which stipulates;

6. ISSUE OF WARRANTS.

(1) If a court, other than a Local Court, is satisfied by information on oath that there are reasonable grounds for suspecting that there is in any building, craft, vehicle or place–

(a) any thing with respect to which any offence has been or is believed on reasonable grounds to have been committed; or

(b) any thing as to which there are reasonable grounds for believing it is likely to afford evidence of the commission of any such offence; or

(c) any thing as to which there are reasonable grounds for believing is intended to be used to commit any such offence,

itmay issue a warrant to search that building, craft, vehicle or place.

(2) If a court is satisfied by information on oath by a commissioned officer of the Police Force that there are reasonable grounds for suspecting that there is in any building or buildings in a village or in any part of a village or village garden anything specified in Subsection (1)(a), (b) or (c), it may issue a warrant to search the building, buildings, village, part of the village or village garden.

(3) Where a warrant has been issued under Subsection (2) the person, policeman or policemen to whom the warrant is directed shall, where it is practicable to do so, before executing the warrant, endeavour to obtain the co-operation of those persons who, by custom, are regarded as the leaders of the village in respect of which the warrant has been issued.

(4) Subsection (1) or (2) does not justify the use of greater force than is reasonable in the circumstances.

The defendant in his application submitted that the documentary evidence that formed the police hand up brief were abstained without a search warrant and secondly were obtained by a person who did not have authority at the material times. The lawyer for the defendant Mr.Amemai referred me to the case of Alex v Golu [1983] PNGLR 117which he argued that the Court has the power to exclude evidence taken in breach of the Search Act.
The Search Act basically regulates the Constitutional rights of person as stated in the preamble of the Act and it states;

Being an Act–

(a) to regulate or restrict certain rights or freedoms referred to in Subdivision III.3.C (qualified rights) of the Constitution, namely–

(i) the freedom from arbitrary search and entry conferred by Section 44 of the Constitution; and

(ii) the right to privacy conferred by Section 49 of the Constitution,

so as to–

(iii) provide for searches of individuals, premises and property in certain cases; and

(iv) confer on persons making searches certain powers and duties; and

(b) to abolish certain rules of common law,

and for related purposes.
Therefore, upon consideration of the above provisions of the Search Act and in the light of the defendant’s application it is apparent, in my view that the application is in essence to enforce a constitutional right of the defendant under the search Act at the committal stage.

In Alex v Golu(supra), the National Court held that the Court has power to exclude evidence taken in breach of the Search Act, however, in my view this does not apply to Committal Courts as the ‘Court’ in that case refers to the National Court and not the committal court.

InLak v. Magaru (supra) I againstressed what the Court alluded to that;
“Notwithstanding that, committal proceedings do make determination affecting a person’s rights thus enabling courts to consider applications for review.”(Underlining mine)

The same view is taken by Justice Lay in Liri v State (supra) when he held that "nothing is finally decided by the committal proceedings. The applicant's Constitutional rights will be protected on trial from any deficiency in the evidence."(Emphasis mine)

In the light of the above case precedents, it is my view that such an application now advanced before this court should be made properly before the National Court at trial. It is premature and misconceived at this stage procedurally incorrect under the existing legal process in a criminal case.
Further, an application for Search Warrants and obtaining of same is not a mandatory requirement under the Search Act as well as for any investigations as it is clearly demonstrated by the use of the word may under section 6 of the Search Act.
Thus, the argument by the defendant that a search warrant should have been taken out cannot be sustained in law.

Hence, based on the above findings, the law and precedents, I am inclined to consider evidence in the police hand up brief, which I have, and make a decision whether there is sufficient evidence to commit the defendant to trial or not in accordance with section 95 of the District Court Act.

Having done so and in discharging my functions as the Committal Court, I find that;

(a) There is sufficient evidence against the Defendant on the charge under section383A (1)(a) of the Criminal Code Act.

Being so, the formal Court orders are;

1. The Defendant Dr. Harry Poka is committed to stand trial at the National Court on one(1) count of Misappropriation under Section 383A(1)(a) of the Criminal Code Act.
2. The Defendant Dr. Harry Poka is committed to stand trial at the National Court on one (1) count of Conspire under Section 407(1) (b) of the Criminal Code Act.
3. The Defendant Dr. Harry Poka is committed to stand trial at the National Court on one (1) count of Abuse of Office under Section 92(1) of the Criminal Code Act.
4. The Defendant Dr. Harry Poka is committed to stand trial at the National Court on one(1) count of Official Corruption Section 87(1)(a)(i)(b) of the Criminal Code Act.
5. The Defendant shall appear at the next Criminal Call over at the Kundiawa National Court.
6. The Defendant’s bail is further extended with the same conditions.
   

Orders accordingly,